Eleganti v. Standard Coal Co.

• Decision Date: 15 October 1917
• Docket Number: 2989
• Citation: 50 Utah 585,168 P. 266
• Court: Utah Supreme Court
• Parties: ELEGANTI v. STANDARD COAL CO

168 P. 266

50 Utah 585

ELEGANTI v. STANDARD COAL CO

No. 2989

Supreme Court of Utah

October 15, 1917

Appeal from District Court, Third District; Hon. T. D. Lewis, Judge.

Action by A. Eleganti, as administrator of the Estate of Giacomo Boetto, Deceased, against the Standard Coal Company.

Judgment for plaintiff. Defendant appeals.

AFFIRMED.

A. R Barnes and E. V. Higgins for appellant.

Weber &amp Olson for respondent.

FRICK C. J. McCARTY, CORFMAN, THURMAN, and GIDEON, JJ., concur.

OPINION

FRICK, C. J.

The plaintiff, as administrator of the estate of Giacomo Boetto, deceased, brought this action to recover damages caused by the death of said Boetto, who was an employee of the defendant company, and whose death, it is alleged, was caused through the negligence of the defendant while the deceased was employed in the coal mine of the defendant in November, 1914. The action was based on our statute (Comp. Laws 1907, section 1518, subd. 3, as amended by chapter 78, Laws Utah 1913, p. 122), which reads:

"In all mines known to generate explosive gases, the mine foreman, or fire bosses, shall make a careful examination every morning of all working places and traveling ways, and all other places which might endanger the safety of the workmen, within three hours prior to the time at which the workmen shall enter the mine. Such examination shall be made with the safety lamp."

In the complaint it is, in substance, alleged that defendant's mine was "known to generate explosive gases"; that defendant had failed and neglected to comply with the provisions of the statute in failing to make a proper or any examination or exploration of the mine for explosive gases. The facts in that regard are fully set forth. It is alleged that the deceased was injured by an explosion of gases in defendant's mine, and that such injuries caused his death, all of which were the result of the omissions and negligence as aforesaid. The defendant, in its answer, denied all acts of negligence; denied that the mine in question was known to generate explosive gases; denied that plaintiff's intestate died from the effects of the explosion of gases in its mine, and, as an affirmative defense, averred that the deceased, at the time he was injured, was at a place in the mine where he had no right to be, and that his injury and death were caused by reason of his own negligence. It is also set up as an additional defense that the deceased had assumed the risk of injury. The cause was submitted to a jury, which returned a verdict in favor of the plaintiff. After modifying the verdict, as hereinafter shown, judgment was entered on the verdict, and the defendant appeals.

The defendant insists that the district court erred: (1) In its charge to the jury; (2) in excluding certain evidence offered by the defendant; (3) in refusing certain requests to charge asked by the defendant; and (4) in not granting the defendant a new trial.

The two propositions first stated raise what seems to be the only important question in the case. With respect to whether the mine in question was one known to generate explosive gases the court charged the jury:

"The court instructs you that it appears from the undisputed evidence that the defendant's mine was a mine known to generate explosive gases."

In the same charge the court also instructed the jury that no examination for such gases was made as provided by the statute. Defendant's counsel excepted to that part of the charge we have quoted, and they now insist that the court erred in so charging the jury. They contend that the question whether defendant's mine was or was not a mine known to generate explosive gases should have been submitted to the jury as a fact to be found, and should not have been determined by the court as a matter of law. No doubt the question of whether defendant's mine was one which was known to generate explosive gases or not was a question of fact. But if there was no dispute respecting that fact, the court did not commit error by declaring the fact to be in accordance with the undisputed evidence. The following excerpt from the statement of facts in the brief of counsel for the defendant is, we think, alone sufficient to determine whether the district court erred in its charge respecting the character of the mine:

"From the very beginning of the development of this mine and up to the time of the accident which occurred on the 29th of November, 1914, no explosive gases had been found or were known to exist in this mine or in any of its workings, with the single exception that gas had been found about the 1st of October, 1914, nearly two months prior to the accident, in a crosscut just started, and which had not been completed, at the face of the second west entry * * * After the discovery of the gas, on the 1st of October, 1914, McMillan made a daily inspection every morning of the mine and the workings of it, with a safety lamp, for a period of three or four weeks. * * * This witness, who stated he had been working in the mines since 1870, and who had practically 44 years of continuous experience in such mines, testified that he discontinued the examination with a safety lamp because he had reached the conclusion that there was not likely to be an accumulation of explosive gases in that mine; and he further stated that he did not consider that mine of such a character that he would expect to find an accumulation of explosive gases therein."

All the witnesses agree that explosive gas was found in the mine about the time stated by counsel, and that at that time proper steps were taken to exclude the gas from the mine. The fact that explosive gas was found in the mine was therefore an undisputed question, and, that being so, no finding to the contrary could have been truthfully made by the jury. Where a finding with respect to any essential fact must necessarily be in the affirmative, it is ordinarily the duty of the court to declare the fact, and not permit the jury to assume that they may find the fact contrary to the undisputed evidence. The evidence is therefore clear and without dispute that explosive gases were discovered in defendant's mine at least on one occasion before the accident, and that such fact was known to defendant's agents who were in charge of the mine, and was therefore known by the defendant. The mine was therefore one which, under the statute, was known to be a mine which generated explosive gases, and hence was governed by the provisions enumerated in the section we have quoted. It was also admitted by all of the witnesses that no examination or inspection of the mine was made as required by the statute for at least several weeks before the accident in question occurred. Then, again, the evidence clearly authorized the findings of the jury that an explosion of gas occurred in the mine at the time of the accident; that the explosion caused the injury to the deceased and resulted in his death; that the deceased was not guilty of contributory negligence; that he did not assume the risk; and that at the time of the explosion he was where he had a right to be in the mine. The controlling facts are therefore either admitted or are established by sufficient evidence to justify the verdict.

Counsel for the defendant, however, contend that the question of whether defendant's mine generated explosive gases or not within the purview of our statute is not a question that can be determined except by those who possess the necessary knowledge and experience upon the subject of explosive gases in coal mines. In other words, they insist that the question is one that must be determined by expert evidence. Counsel's theory is perhaps best illustrated by certain questions propounded by them to a certain witness, who, it was shown, possessed the necessary knowledge to testify upon the question. The question propounded reads as follows:

"From your knowledge of coal mines where you had operated and in this mine, would...